Plaintiff
Sterett Crane and Rigging, LLC
(“Sterett”) is a limited liability
corporation in the business of renting cranes for use on
construction projects. Defendant White Construction, Inc.
(“White”) is a corporation engaged in
providing construction services for various wind farm
projects across North America. On April 17, 2014, White and
Sterett entered into a Service Agreement for the rental of a
Terex Demag 2800 660-ton crawler crane (the
“Crane”) for White's use at the
Headwaters Wind Farm Project in Winchester, Indiana (the
“Project”). Sterett initiated this
litigation against White, alleging that it breached the terms
of the Service Agreement when the Crane was damaged while
moving from one site of the Project to another and was not
returned to Sterett in as good of a condition as it was when
White received the Crane.

Presently
pending is a Motion for Partial Summary Judgment filed by
Sterett, which relates only to its breach of contract claim.
[Filing No. 52]. Also pending is a Motion for Oral
Argument on Sterett Crane & Rigging, LLC's Motion for
Partial Summary Judgment filed by White, [FilingNo. 68][1], and a Motion for Leave to File Surreply
in Opposition to Plaintiff's Motion for Partial Summary
Judgment filed by White, [Filing No. 72].

I.

Motion
for Leave to File Surreply

Before
analyzing the parties' substantive arguments in
connection with the Motion for Summary Judgment, the Court
will consider White's Motion for Leave to File Surreply.
[Filing No. 72.] This is necessary because the
motion relates to the scope of information that the Court
could consider in deciding the Motion for Summary Judgment.

In
support of its motion, White argues that Sterett objected to
the admissibility of evidence White relied upon in its
response brief because it is impermissible parol evidence, so
a surreply is appropriate. [Filing No. 72 at 1.]
White also contends that it should be permitted to
“rebut the argument that the Court should not consider
White's sworn affidavits and testimony as
‘self-serving'….” [Filing No. 72
at 2.]

Sterett
argues in response to White's motion that it did not
argue in its reply that the parol evidence at issue is
inadmissible, but only that it is not material or relevant,
and is “barred from consideration by the integration
clause that is part of the contract…between the
parties.” [Filing No. 73 at 2.] Sterett also
asserts that its argument regarding White's affidavit
being self-serving is not about admissibility, but rather is
that the affidavits are “immaterial because they are so
vague and ambiguous that they cannot create an issue of
fact.” [Filing No. 73 at 2.]

On
reply, White argues that relevancy and materiality relate to
the admissibility of evidence, so its surreply should be
permitted to address the parol evidence. [Filing No. 74
at 1.]

Local
Rule 56-1(d) permits the filing of a surreply “only if
the movant cites new evidence in the reply or objects to the
admissibility of the evidence cited in the response.”
The Court rejects White's argument that Sterett objects
to the admissibility of the parol evidence in its response
brief. Rather, Sterett argued in its response that the Court
should not consider the parol evidence because the Service
Agreement “was fully integrated.” [Filing No.
70 at 7.] Whether evidence is admissible under the
Federal Rules of Evidence and whether the Court should
consider evidence based on a contract's integration
clause are distinctly different concepts, and White cannot
address the latter in a surreply. The Court also notes that
Sterett argued in its initial brief in support of its Motion
for Summary Judgment that the Court should look to the
language of the contract and that if an “ambiguity
arises because of the language used in the contract and not
because of extrinsic facts, then [the contract's]
construction remains a pure question of law to be determined
by the Court.” [Filing No. 53 at 6.] White had
ample opportunity to address whether the Court should look
outside of the contract in its response brief and, indeed,
did so. [See, e.g., Filing No. 67 at 12
(arguing that the Court should consider parol evidence since
the parties “agreed to oral terms outside of the
written documents”).]

The
Court also rejects White's characterization of
Sterett's argument that White presented
“self-serving” affidavits as one related to
admissibility. Sterett argues in its reply that
“self-serving” evidence should not be considered
and “cannot preclude summary judgment.”
[Filing No. 70 at 9 (quotation and citation
omitted).] It does not, however, argue that the evidence is
inadmissible.

The
Court DENIES White's Motion for Leave to
File Surreply in Opposition to Plaintiff's Motion for
Partial Summary Judgment, [Filing No. 72], because
it addresses matters that are not within the scope of Local
Rule 56-1(d).

II.

Motion
for Summary Judgment

A.
Standard of Review

A
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. SeeFed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
56(e).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact ...

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